“Belgium 1926” label on chocolate plausibly indicates current Belgian origin

Hesse v. Godiva
Chocolatier, Inc., 2020 WL 2793014 No. 19-cv-972 (AJN) (S.D.N.Y. May 29, 2020)

The forgiving plausibility
standard allows consumer protection claims about Godiva’s use of “Belgium 1926”
on its American-made chocolates to continue. The court points out that,
although “founded in Belgium in 1926 but not still there” might be a plausible
interpretation, “founded in Belgium in 1926 and still there” is at least as
plausible if not more so. Other moments of note: (1) injunctive standing
lacking because plaintiffs now know the truth and future desire to buy properly
labeled chocolate isn’t concrete enough; (2) Godiva raises a First Amendment defense
to this garden-variety consumer protection claim. Expect more of this even
though the court disposes it in a footnote as putting the cart before the
horse: if this is misleading commercial speech, it’s not protected by the First


example of challenged packaging

Godiva puts “Belgium
1926” “prominently … on the front packaging of all the Godiva chocolates.”
Amended Complaint, and “across its entire marketing campaign, such as on its
Godiva storefronts, supermarket display stands, and print and social media
advertising,” but made all its chocolates in Reading, Pennsylvania during the
relevant time period. Plaintiffs alleged that “Belgium is widely understood and
recognized as producing among the highest quality chocolates in the world” and that
American chocolate differs in taste from that produced in Belgium, due “to the
use of different butters, creams, and alcohol.”

Article III standing
for injunctive relief: the court reasoned that plaintiffs’ injury was “hypothetical—if
they choose to purchase Godiva’s products in the future, then they may be
harmed.” But isn’t the injury the ongoing lack of ability to rely on the label?
That doesn’t require a choice to buy Godiva; it’s about interference with the decisional
environment. But anyway, plaintiffs know the truth so they couldn’t be harmed
by the continued representation of Belgian origin. (Again, the 9th Circuit
pointed out that products can change, so that doesn’t necessarily mean that
they never face Godiva-related choices again.)

New York General
Business Law the usual California statutory claims survived. The reasonable
consumer applied to all these claims. Godiva claimed that its statement was “unambiguous
and historically accurate message” about the founding, but “an equally, if not
more, plausible inference is that the phrase represents both the provenance of
the company—Belgium, in 1926—and a representation that its chocolates continue
to be manufactured there.” Godiva relied on a trademark registration, several
pages on Godiva’s website, and a CBS News article stating that Godiva’s
chocolates are manufactured in Pennsylvania. “Godiva asks the Court to draw an
inference in its favor: that because these documents were public record,
reasonable consumers were aware of where its manufacturing occurs. That
inference is couched in assumptions—that everything in the public record is
universal knowledge and that, even if this information was widely disseminated,
Godiva’s label could not lead a reasonable consumer astray, to name a few.” Not
on a motion to dismiss! 

This is especially
true because reasonableness takes the entire context of product labeling into
account. Part of the “mosaic” was that “some of Godiva’s packaging and
social-media advertising describe its chocolates as Belgian. The front
packaging of one of its boxes, for example, contains the phrase “ASSORTED
BELGIAN CHOCOLATE CARAMELS,” and its social-media advertising states “Delicious
Belgian chocolates brought to you …” Those facts bolstered the conclusion
that a reasonable consumer could conclude that its chocolates are manufactured
in Belgium. The court distinguished other cases “where the label in question
expressly disclaims its actual origin—which is not the case here.” Though
disclosures aren’t always curative, “the absence of a disclosure counsels
strongly against Godiva’s argument.”  Fundamentally, “it is reasonable that a
consumer would view a label touting the location and year of a company’s
founding as representing the products’ continued place of production,” even if reasonable
consumers would not think that individual chocolates were produced in 1926.

Most of the warranty
claims also survived, but common-law fraud, intentional misrepresentation, and
negligent misrepresentation did not.

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